Brookes v Inner West Council

[2022] NSWLEC 1469

Land and Environment Court

New South Wales

Medium Neutral Citation:

Brookes v Inner West Council [2022] NSWLEC 1469

Hearing dates:

Conciliation conference on 12 & 18 August 2022

Date of orders:

08 September 2022

Decision date:

08 September 2022

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development consent is granted to amended development application DA/2021/1132 seeking the demolition of the existing dwelling, and the construction of a new dwelling consisting of single and double storey sections and related landscaping on Lot 261 DP 1071073, known as 13 Sutton Street, Balmain, subject to conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Environmental Planning and Assessment Regulation 2000, cl 55

Interpretation Act 1987, s 30A

Land and Environment Court Act 1979, ss 34, 34AA

Leichhardt Local Environmental Plan 2013, cll 4.3A, 4.4, 4.4A, 5.10, 6.1

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy No 55—Remediation of Land (repealed) cl 7

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Category:

Principal judgment

Parties:

Christopher Brookes (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
V Conomos (Solicitor) (Applicant)
J Hewitt (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2022/130666

Judgment

1. These proceedings are an appeal made pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of development application no. DA 2021/1132 by Inner West Council (Council). The proposal comprises the demolition of an existing structure at 13 Sutton Street, Balmain (site) which straddles the boundary of the adjoining site at 11 Creek Street, Balmain to allow the construction of a new dwelling consisting of single and double storey sections and related landscaping (proposed development).

2. The Court arranged a conciliation conference under s 34AA(2) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held onsite on 12 August 2022. I presided over the conciliation conference.

3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application in an amended form subject to conditions. The amendments included an increase in the setback of the built form to improve the amenity of the neighbouring property in particular their rear courtyard.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. Before exercising this power, I need to be satisfied that I have jurisdiction to make orders as agreed and to assist me the parties provided me with a joint submission about jurisdiction.

5. Before anything else I acknowledge receipt of landowners’ consents to the proposed works including consent from the adjoining landowner at 11 Creek Street to demolition works on his land as identified in the DA documentation.

6. I also acknowledge that the proposed development is permissible with consent in Zone R1 – General Residential, pursuant to Leichhardt Local Environmental Plan 2013 (LLEP 2013) which is the relevant environmental planning instrument for the land.

7. Clause 4.3A of LLEP 2013 is also relevant as the proposal is for residential accommodation in the Zone R1 - General Residential. This clause requires the development to include a landscape area of at least 15% (as the site area is 184.34m²) and a maximum site coverage of 60%. The planning experts agree that the proposed landscape area is 18% and the site coverage is 60%, Consequently, both numerical requirements of the landscape area and site coverage controls are met.

8. Clause 4.4 of LLEP 2013 provides for a maximum floor space ratio (FSR) for this site and based on the formula in cl 4.4A(2) the FSR is 0.9:1 (165.90m²). The amended plans provide for an FSR of 0.87:1 (being an area of 159.60m²) and thereby the development is compliant.

9. Clause 5.10 of LLEP 2013 requires a consent authority to take into account the effect of the proposed development, including the demolition of the existing building, on the heritage significance of the heritage conservation area. The original application was accompanied by a heritage impact statement, which has been supplemented by the assessment carried out by the heritage experts in the process of joint conferencing. I have considered that expert evidence and accept their view that the demolition will not adversely impact the significance of the heritage conservation area. Accordingly, cl 5.10 has been addressed.

10. Clause 6.1 of LLEP 2013 contains requirements relating to acid sulfate soils. The Acid Sulfate Soils Map identifies the site as containing Class 5 acid sulfate soils. However, the proposed development is not within 500m of Class 1-4 land and so an acid sulfate soils management plan is not required.

11. State Environmental Planning Policy No 55—Remediation of Land (SEPP 55) was repealed on 1 March 2022. Its operative provisions were transferred to State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience & Hazards SEPP). Section 30A(2) of the Interpretation Act1987 provides:

“The transfer does not affect the operation (if any) or meaning of the provision, and accordingly the provision is to be construed as if it had not been so transferred.”

Clause 7 of SEPP 55 has been transferred to s 4.6 of the Resilience & Hazards SEPP. Section 4.6 is expressed in identical terms to cl 7 of SEPP 55.

12. Section 4.6(1) of the Resilience and Hazards SEPP requires the consent authority to consider whether the site is contaminated prior to granting development consent and, if contaminated, that the site is suitable or will be made suitable. The parties submit that the proposed development does not involve a change of use of the land which would require a preliminary investigation in accordance with the contaminated land planning guidelines under s 4.6(2) and I am satisfied of that fact. The Council's records also indicate, consistent with the information provided in the Statement of Environmental Effects which forms part of the application, that the property has been used for a residential purpose and is unlikely to be contaminated.

13. The updated architectural plans were accompanied by an updated BASIX Certificate pursuant to the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 so that matter has been addressed.

14. The amended architectural plans were the subject of notification from 2 August 2022 to 10 August 2022 and two submissions were received. The Council is satisfied that the amended plans adequately address matters previously raised in the contentions and that the proposal is worthy of approval. I note the agreed position of the parties in respect of the merits of the proposal. The experts for the parties are also satisfied, having considered the concerns of the objectors, (including having had the benefit of attending the site at 11 Sutton Street) that the provision of the indented courtyard provides for visual relief, and the courtyard corresponds (aligns) with the courtyard at 11 Sutton Street, whilst also being setback at the first floor from the common boundary with 11 Sutton Street. The height of the first floor has been suitably minimised to provide an acceptable visual bulk outcome when viewed from 11 Sutton Street. The acceptability of the amended plans is also addressed in the joint report of the experts which is Ex A in the proceeding.

15. For all these reasons I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. In that circumstance, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

16. The Court notes that:

1. Inner West Council, the respondent, as the relevant consent authority has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending the development application DA number DA 2021/1132 filed with the court on 6 May 2022.

2. The applicant uploaded the amended plans and updated BASIX onto the NSW Planning Portal on 11 August 2022. The additional landowners consent authority was uploaded to the NSW Planning Portal on 12 August 2022.

3. The applicant filed the amended application with the Court on 11 August 2022.

17. The Court orders:

1. The appeal is upheld.

2. Development consent is granted to amended development application DA/2021/1132 seeking the demolition of the existing dwelling, and the construction of a new dwelling consisting of single and double storey sections and related landscaping on Lot 261 DP 1071073, known as 13 Sutton Street, Balmain, subject to conditions in Annexure A.

…………………….

S Dixon

Senior Commissioner of the Court

Annexure A (226077, pdf)

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Decision last updated: 08 September 2022